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28 September 2023

Why do employers opt for drug testing?

As cannabis is increasingly legalised and decriminalised across the world, both for medical and recreational use, companies conducting drug testing must adapt protocols to keep up with changing social and political norms. Naomi Latham, Associate in our Employment Department and specialist in employment and partnership law, answers the questions that HR teams are asking about this sensitive issue.

Why do employers opt for drug testing?

Employers have a general duty under the Health and Safety at Work etc. Act 1974 to ensure, as far as reasonably practicable, the health, safety and welfare of their staff. Furthermore, the use of drugs can affect a person’s ability to perform to an effective and safe standard. Therefore, conducting drug testing in the workplace can reduce the risk of accidents or injuries in the workplace and ensure a safe working environment for all.

However, given the intrusive nature of drug testing, employers should only introduce or use such testing where it is necessary.

How do HR professionals navigate workplace drug policies as recreational and medical cannabis is increasingly accepted/not criminalised?

Employers do not have to limit their policies to drugs prohibited under the Misuse of Drugs Act 1971, of which cannabis is one of many. The misuse of other substances, including prescribed or over-the-counter medication, can also be a legitimate cause for concern. It is worth noting, however, that the Misuse of Drugs Regulations 2001 allows for the legitimate use of controlled drugs and includes unlicensed cannabis-based medicinal products, which can be prescribed under certain circumstances.

In the circumstances where an employee fails a drug test and attributes that to the use of medicinal cannabis, then HR professionals will need to apply the usual rules regarding disciplinary processes, in accordance with any workplace policy and/or ACAS Code, and conduct an appropriate investigation and verification of the position.

Employees should also be encouraged to speak up and disclose the use of medicinal cannabis, even if there are no obvious safety concerns, to ensure reasonable adjustments and risk assessments are undertaken where necessary. Where such a disclosure is made, an employer may wish to ensure that the employee can substantiate any prescription and appropriate consideration will need to be given to when and on what basis the individual will be taking the prescribed medicine and how that might pose a risk in the workplace. Consideration should also be given where an employee’s prescription of medicinal cannabis relates to a condition which may constitute a disability under the Equality Act 2010. In such circumstances, employers should consider referring the employee to occupational health in order to identify the extent of any potential disability and the need to make reasonable adjustments.

What should HR professionals keep in mind regarding drug-testing?

There are both employment and data protection implications.

Drug-testing in the workplace is likely to engage UK data protection legislation, specifically where test results are processed and kept by HR, as this would amount to processing special category personal data. Nonetheless, HR should obtain employee’s consent, in writing, prior to any drug testing taking place. Employees should also be aware of the circumstance(s) in which any medical testing may take place, the nature of the testing, how information obtained through testing will be used, and the safeguards that are in place.

Furthermore, assuming an employer’s request for an employee to submit to a test is reasonable and proportionate in the circumstances, a refusal to undergo such testing may amount to misconduct, on the basis that it may constitute a refusal to follow a lawful and reasonable instruction and therefore form grounds for disciplinary action. Case law has established that the possession of cannabis at work may amount to gross misconduct and an employer’s decision to dismiss on that basis may fall within the range of reasonable responses and therefore render a dismissal potentially fair. Employers should still be alive to the risk of an unfair dismissal claim, particularly where an employee has two years’ service. In each instance, an employer should ensure that it follows a fair and proper procedure in relation to a disciplinary situation and identifies a potentially fair reason for any subsequent dismissal.

Now that we find ourselves in a hybrid working world, it is also worth considering how and whether the use of drugs, prescribed or otherwise, whilst working from home may be considered conduct that pertains to the employment relationship. Particularly where such conduct may affect the employee’s working arrangements, either because of the particular nature of the work or because of the potential damage to the employer’s reputation. In this regard, employer’s should revisit and update their existing policies on this issue and bear in mind the changing landscape when it comes to hybrid working.

This article is a part of our quarterly employment newsletter. If you wish to receive our quarterly employment law newsletter, get in touch.

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Naomi Latham
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